N4645

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1552 OF 2010
CR NO. 792 OF 2011

STATE

V

GUMA WAU & PETER NENG TEI
Accused

Kundiawa: Ipang AJ
2012: March 19 & 20

CRIMINAL LAW –Criminal Code Act – section 558 – Motion to quash indictment – grounds relied on to quash indictment – witnesses statements tendered at Committal Court were in want of form and fail to comply with ss. 94, 94 (1A), 94 (1B) and 94C of the District Courts Act, Chapter 40.

CRIMINAL LAW – Motion to quash indictment (s558) can occur in two (2) situations where the indictment is defective in (i) form and (ii) in substance. Variance in form and substance discussed.

Cases Cited

R v Burusep & Ors [1963] P&NGLR 181 
R v Dandemib [1969 – 1970] P&NGLR 207
State v Kai Wabu [1994] PNGLR 498
Yarume v Enga [1996] N1476 (6 September, 1996)
R v Yofia Abune [1967 – 1968] PNGLR 277
R v Angoro Evu [1969 – 1970] P&NGLR 274
R v Nakian Mandiam [1973] PNGLR 135
State v John Koma (2002) N2176 
Sakawar Kasieng v Andrew Baigry, Magistrate of Wewak District Court & The State (2004) N2562
Robert Lak v Daisy Magaru Magistrate at Waigani Committal Court & State (1999) N1950 
Justin Thatchenko v Daisy Magaru (2000) N1956

Counsel

Mr. J.Kesan, for the State
Mr. G.Gendua, for the Accused

RULING ON MOTION TO QUASH INDICTMENT

20th March, 2012

1. IPANG AJ: The State Prosecutor presented an indictment against both accused on one count of attempted murder under s.304 of the Criminal Code Act, an alternative Count of intending to cause grievous bodily harm under s.315 of Criminal Code Act, and a further alternative count of causing grievous bodily harm under s.319 of the Criminal Code Act. After the indictment was presented Mr. G. Gendua of Counsel for both accused persons moved his motion to quash the indictment pursuant to s.558 (1) (b) of the Criminal Code Act.

2.	The s.558 of the Criminal Code Act is worded in the following terms;

558. Motion to quash indictment 

1.	The accused person may before pleading apply to the Court to quash the indictment on the ground that – 

a.	It is calculated to prejudice or embarrass him in his defence to the change; or 
b.	It is formally defective;

2.	On a motion under sub section (1) the Court may.

a.	Quash the indictment, or 
b.	Order it to be amended in such manner and the Court thinks just, or 
c.	Refuse the application 
 
3.	The grounds upon which the counsel for the two (2) accused persons relied on to move his motion are in two(2) folds; and these are,

i.	The indictment is formally defective on the basis that the two (2) committal proceedings which were conducted separately in relation to the two accused, were defective as section 94 (1A) and section 94C (2) of the District Court Act, Chapter 40, which being mandatory requirements were not complied with, or alternatively were breached by the Committal Court respectively;

ii.	 The Committal Court wrongfully or erroneously received and allowed hearsay evidence and irrelevant evidence to come to this Court, which is contrary to the rules of evidence as hearsay and irrelevant evidence is inadmissible in a Court of Law. 

4.	Mr. Gendua of Counsel for the accused drew the Court's attention to the two (2) situations which he says an indictment can be held to be defective. He submitted that on the first instance where the Committal Court has committed breaches in not complying with or observing the legal or mandatory requirements under the District Court Act, Chapter 40 which relate to the Committal process. The Counsel said the second situation can happen in cases where witnesses' statements have been wrongfully or improperly allowed by the Committal Court in to the National Court against the Evidence Act or the rules of evidence. 

5.	Both accused were committed on separate dates by the Committal Court. Accused Guma Wau was committed on the 23rd November, 2010 and his co-accused Neng Peter Tei was committed on the 17th August, 2011. In respect to the accused Guma Wau, his Counsel submitted that there are 21 witnesses' statements tendered in the Committal Court. All the 21 witnesses gave their statements in English. Six (6) of these witnesses are policemen, two (2) are medical doctors. A part from that Counsel said one Camilus Daginna who has a University education can speak English. However he submitted that the rest of the witnesses to be exact 12 of them cannot speak in English. 

6.	Given the above scerenio, Counsel says the Committal Court failed to observe or comply with sections 94, 94 (1A), 94 (1B) and 94 C of the District Court Act. In this regard, Counsel seeks to formally tender the Committal Court depositions and submitted that this Court should scan or peruse briefly the documents relating to the accused Guma Wau. Counsel referred to Regina v Simbena Dandemb [1969 – 1970] P&NGLR 207 as the authority where Committal Court depositions were tendered. The tendering of the Committal Court depositions may have further repercussions on my continuity to preside over this matter. That by the time I have briefly considered the Committal Court depositions, I would have knowledge of what's on the depositions and would therefore disqualify myself from presiding. 

7.	The s.94 (1A) of the District Court Act provides for the format the affidavit should appear. The statement should contain "warning to maker" be signed by the maker, etc…section 94 (1B) states the statement be in affidavit form. Counsel submitted that the statements of Dr. B. Urakoko and Dr. J.Tonar are not in compliance with s.94 (1A). Section 94C captures the duty or the task to be performed when conducting an inquiry during committal proceedings. Section 94C (2) states the following words;

"(2) Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or unable to read had had it read to him in a language that he understand."

8.	The case on point which further emphasized the requirements to comply with s.94 (1A) and 94C is the State v Kai Wabu [1994] PNGLR 498.

9.	Further, counsel submitted that the evidence of the two (2) medical doctors are hearsay and should not have been received by the Committal Court. Counsel says this is contrary to the rules of evidence under the Evidence Act.

10.	In specific reference to the accused Neng Peter Tei it was submitted that basically all the witnesses statements the Medical Report and other exhibits presented at the accused Guma Wau's committal proceedings were just copied and placed on Neng Peter Tei's committal file. It was therefore submitted by Mr. Gendua of Counsel for the accused that this has resulted in the faulty committal of the accused Neng Peter Tei.

11.	In finality, Counsel submitted that the defects as argued are both in substance and form and therefore render the indictment formally defective and should be quashed pursuant to s.558 (2) (a) of the Criminal Code Act.

REPLY BY STATE 

12.	Mr. J.Kesan's contention to the Defence motion to quash indictment is only for the formal defects on the face of the indictments. As such, Mr. Kesan says defence counsel is relying on very old, pre independence rules or authorities in which indictments were challenged on the grounds of defective committals. He said the practice has changed and the appropriate forum to bring such complaints is by way of a judicial review under Order 16 Rule 3 of the National Court Rules. 

13.	State also argued that there was no evidence either by way of affidavit to demonstrate that those witnesses who tendered statements are illiterate. Also therefore cannot be expected to be in compliant with ss.94 (1A) or 94C (2) of the District Court Act. State contended that reports are treated as business records of the hospital under s.61 of the Evidence Act.

14.	Finally, Mr. Kesan of Counsel for the State raised a legal argument that "a party seeking to raise argument in the higher Court must first of all raise that argument in the Court below. Counsel said this is a trite law. He said if a party fails to do that, that party can be stopped from raising the argument in higher Court. Counsel refered to the case of Fly River Provincial Government v Pioneer Health Services Ltd (2003) 24 March, 2003 SC 705. The Supreme Court held;

"A party is not at liberty to raise a point on appeal that should have been raised in the Court below in the interest of fairness and to do justice. By his conduct, a party fails to raise all the issues that should have been raised in the Court below is precluded from raising them on appeal".

15.	Basing on that argument the State argued that Mr. G.Gendua from Gendua Lawyers was the lawyer on record, representing both accused persons before the Committal Court but did not raise the issue of non-compliance. The s.94(2) (b) provides for the accused's legal counsel to request the court to consider a submission that the statements referred to in subsection (1) do not disclose sufficient evidence to put the defendant (accused) on trial for the offence. This opportunity for the accused arises after the evidence on the part of prosecution has been received and the Court is presented with the option to consider whether it is sufficient to commit defendant for his trial or sentence before the National Court. 

MOTION TO QUASH AN INDICTMENT BASED ON FORM AND/OR SUBSTANCE.

16.	As indictment can be defective in "form" and/or in "substance". An abrupt distinction can be drawn between an indictment which is defective in "form" and an indictment which is defective in 'substance'. Mann CJ in R v Burusep (Supra) gave the following description on p187.

"The formal defect which is apparent on the face of the indictment if objection is not taken by motion to quash the indictment before the jury is sworn may be waived and cannot be taken later. If it is apparent on the face of an indictment that the Court had no jurisdiction or that no offence could have been committed this may involve defects of both form and substance, and the section cannot mean that the latter would be waived if raised in time. An amendment and to form might obviate the apparent defect in substance, but if not, I think that a "formal defect" must be limited to the form in which the indictment appears".

17.	The previous s.596 of the Criminal Procedure Ordinance of 1889 deals with motion to quash indictment. It is based on the Queensland Criminal Code Act. The ordinance was adopted and applied as part of the law in the Territory of New Guinea in 1921. Under the limb of s.596 which related to prejudice or embarrassment was restricted to cases such as an improper joinder of counts or an unmanageable number of counts and that which related to formal defect was limited to cases where there is some error in the wording of the indictment. See R v Simbene Danbemb (supra) at p.213.

18.	Under s.558 of the Criminal Code Act, the following are some examples of defects in substance. In situation where an accused has been tried twice for the same offence. See R v Yofia Abone [1967 -1968] P&NGLR 277 at p.282; where State tried two parties to a joint crime and under separate indictments and call each as witness against each other. See R v Simbene Dandemb (Supra); In a situation where an accused was indicated for a different offence that he was initially committed for. See R v Angoro Evu [1969 -1970] P&NGLR 274; In R v Nakian Mandiam [1973] P&NGLR 135, a statutory declaration setting out injuries was tendered as evidence before Committal Court however, the accused was not given opportunity to cross-examine. These are not excusive examples of defects in substance. 

19.	The above stated cases R v Yofia Abone (supra), R v Simsbene Dandemb (supra) R v Angoro Evu (supra) and R v Nakian Manfian (supra) were dealt with under the old practice and procedures at the Committal Courts. Under the previous practice and procedures of the Committal Courts the witnesses were vigorously and intensively subjected to cross-examination when the Committal magistrates conduct inquiry to determine whether there is sufficient evidence or not.

20.	In State v Kai Wabu (supra), Injia, J (as he then was) made this observation I quote;

"It seems to me that committing magistrates and police are not complying with strict requirements of s.94C (2). In almost all plea matters I have dealt with so far, I have not yet come across a case where a statement from a supposedly illiterate witness bears an endorsement or some evidence of compliance with s.94C (2). In the trial matters I have dealt with, written statements of witnesses in English tendered by consent also lack evidence of compliance with s.94C (2). In all these matters, I have not yet come across any record by the committing magistrate as to his satisfying himself as to the admissibility of the document under s.94C (2). In the case before me, I am satisfied on the case before record that s.94C (2) has not been complied with by the committing magistrate or the police informant. 

21.	The observation made by Injia, J (as he then was) needs a thorough examination. First of all, I do acknowledged His Honour Injia, J (as he then was) remark on non compliance with s.94C (2). I would say that the old committal system would have quite easily identified the issue of non compliance with s.94C (2). Otherwise, in the current practice it is obvious that a committal magistrate can notice the "non- compliance" on the face of the record through the witness or witnesses – use of stamping their thumbs or used 'cross or axe' signs. Apart from that would be difficult as witnesses in current committal proceedings are not brought before Committal Court for cross examination. 

22.	The practice under the current Committal Court proceedings (Handout Briefs), the committal hearing is only an inquiry. The committal magistrate gather evidence and assess them to see whether evidence is sufficient to commit accused for trial or sentence in the National Court. This is basically to see if all the elements or an ingredient of the offence is present before he commits the accused accordingly. See ss.94B, 94C, 95 & 100 of the District Court Act, Chapter 40. Whether the findings of a Committal Magistrate are against the weight of evidence is not an important aspect. This is a matter for trial proper at the National Court. See Yarume v Enga [1996] N1476. Committal Court Magistrate should therefore be cautious that they don't dwell or venture in to exercising the function of National Court.

23.	Having said the above I am mindful of what the Supreme Court stated in Application by Herman Joseph Leahy (2006) SC855 that, magistrate must only have before him evidence which is admissible. He must reflect on the elements of the offence. He must weigh the evidence for the prosecution and for the defence, and come to a decision whether there is sufficient evidence to put defendant upon his trial for that charge or for some other charge. 

24.	Even after committal, the Public Prosecutor under s.525 of the Criminal Code Act still has the opportunity to consider evidence, then at his discretion decide whether to indict on a charge of any offence that the evidence appears to him to be of any offence that the evidence appears to him to warrant. See State v John Koma (2002) N2176.

25.	The motion to quash an indictment by the defence contains issues centering on "substantive" defects. However, the grounds contain in the motion do not resemble that of the substantive defects as expounded earlier in paragraph 18 of this judgment. 

26.	The question that comes to mind is, what would then be the appropriate forum that the accused could have raised the grounds contained in their motion to quash an indictment. Mr. Kesan refered to the judicial review process under Order 16, rule 3 of the National Court Rules. There are a number of judicial decisions on review of committal Court decisions in this jurisdiction. In Sakawar Kasieng v Andrew Baigry, Magistrate of Wewak District Court and The State (2004) N2562, Kandakasi stated;

"…Judicial review is not readily available remedy for a review of a Committal Court's decision to commit a person to stand trial before the National Court. However, in a clear case of error, particularly where a committing Court obviously acts in excess of or without jurisdiction, judicial review is an available remedy to avoid further unnecessary costs and anxiety."

27.	 Though reluctantly some Judges in the National Court have refused to exercise their review jurisdiction by reviewing decisions of committal Court, some have gone ahead to exercise the review jurisdiction. See for examples Robert Lak v Daisy Magaru Magistrate at Waigani, District Committal Court & The State (1999) N1950; Justin Tkatchenko v Daisy Magaru (2000) N1956.

28.	Now let me revert to the grounds relied on by the Defence to quash the indictment. The grounds relied on by the two (2) accused persons to move their motion to quash the indictment do not raise defects in substance 'which I have alluded to in paragraph 18. However, the grounds raised by the accused persons are related to the issue of admissibility of evidence generally. Therefore, judicial review would not be an appropriate forum for both accused. The challenges to the admissibility of certain evidence are not matters going to the jurisdiction of the committal Court but are matters that can be raised at the substantive trial before the National Court.

29.	Because of the aforesaid reason, I refuse the motion to quash the indictment pursuant to Section 558 (2) (c) of the Criminal Code Act. I order that the matter proceed to trial.

____________________________________
Public Prosecutor: Lawyer for the State 
Gendua & Associates Lawyers: Lawyer for the Accused